Nudist pleads guilty to three counts related to the possession of child pornography and sentenced to 121 months in prison

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2609

United States of America,

Plaintiff-Appellee,

v.

Christopher A. Moore,

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois, Rock
Island Division.
No. 98 CR 40038--Michael M. Mihm, Judge.

Argued January 6, 2000--Decided May 31, 2000

Before Coffey, Flaum and Kanne, Circuit
Judges.

Kanne, Circuit Judge. Police arrested
Christopher A. Moore on probable cause
that he possessed child pornography after
his apartment manager found a magazine
outside of Moore's residence bearing
Moore's name and containing pictures of
nude children. Following his arrest, he
consented to a search of his apartment
during which police found other
depictions of child pornography. Moore
moved to suppress the fruits of the
search because the police officer lacked
probable cause to arrest him, but the
motion was denied. Moore pleaded guilty
to three counts related to the possession
of child pornography and was sentenced to
121 months in prison. He appeals the
denial of the motion to suppress. Finding
no error, we affirm the conviction.

I. History

Officer Dave Tertipes of the Moline,
Illinois, police department responded to
a call on June 25, 1998, to meet the
manager of an apartment complex
concerning "pictures of naked children."
On his arrival, the manager gave Tertipes
a magazine entitled "Ophelia Editions"**
that had been found in the hallway of the
apartment complex where Moore lived. The
magazine was addressed to "Chris Moore."

The cover of the magazine featured a
drawing of a clothed girl in a
provocative pose who appeared to be about
10 to 12 years old and described the
contents as "Fine Art ? Photography ?
Literature ? Non-Fiction." The twenty-
eight-page magazine was a catalogue
accompanied by descriptions and sample
photos of about eighty other
publications, including picture books of
nude children and stories of children en
gaged in sex. The magazine contained a
disclaimer purportedly affirming that the
contents had been reviewed by an attorney
and did not contain "lascivious
exhibition[s]" of persons under eighteen.
Tertipes, who had no special training in
identifying child pornography, found at
least three photographs that he
considered illegal under the state child
pornography law. The catalogue also
contained many written descriptions of
sexual contact with and among minors.

Based on this review, Tertipes knocked
on Moore's apartment door and identified
himself to Moore, who invited him to
enter. Tertipes asked Moore about the
magazine, and Moore admitted to ordering
the magazine over the Internet. Moore
characterized himself as a nudist who
"likes to view the human body in its
natural state." Tertipes asked Moore to
come to the police station, and Moore
initially complied voluntarily. Once in
the car, Moore asked if he could leave.
Tertipes consulted with his supervisor
who said, "He doesn't have a choice.
Bring him down." Tertipes placed Moore
under arrest.

Once Moore arrived at the station, Lt.
Steve Brockway took over the
investigation. Brockway, who had previous
training and experience in child sexual
abuse and pornography cases, reviewed the
magazine and concluded that it contained
child pornography. Brockway read Moore
his Miranda rights. Following a detailed
explanation of his rights, Moore agreed
to waive his rights and signed a
voluntary waiver form. During
questioning, which lasted about two
hours, Moore referred to himself as a
nudist but eventually admitted that he
had a proclivity toward sex with children
and possessed other depictions of child
pornography at his apartment.

Brockway informed Moore that he thought
he had probable cause to obtain a search
warrant and asked Moore if he would
consent to a search of his apartment and
vehicle. Moore agreed and signed a form
consenting to the warrantless search of
his home and vehicle. No evidence
indicated that Moore was incapable of
voluntary consent or that Moore was
threatened or coerced in any way. After
signing the form, Moore ceased the
interview.

The police executed the warrant and
found an album containing eighty-nine
photographs of minor boys posed
provocatively or engaged in sexual acts
and a stack of computer-generated photos
of boys engaged in sexual acts. Police
seized Moore's computer, which contained
images of child pornography and e-mail
correspondences detailing Moore's efforts
to arrange meetings with children for the
purpose of engaging in sex. Other
publications, including some that were
advertised in "Ophelia Editions," were
also found.

Subsequently, Moore challenged the
legality of the search under the Fourth
Amendment, but the motion to suppress was
denied.

II. Analysis

Moore presents two reasons why the
search should be suppressed. First, he
argues that police lacked probable cause
to arrest him, and therefore, his consent
to the search of his apartment was
involuntary. Second, he contends that as
a matter of law, the police should seek
probable cause review from a neutral
magistrate before executing an arrest. On
a denial of a motion to suppress, we
review the lower court's findings of fact
for clear error and its conclusions of
law de novo. See United States v.
Scheets, 188 F.3d 829, 835 (7th Cir.
1999). The application of facts to a
legal standard such as probable cause
constitutes a mixed question of law and
fact that we review de novo. See United
States v. Johnson, 170 F.3d 708, 713 (7th
Cir. 1999).

A. Prior Review

In Roaden v. Kentucky, 413 U.S. 496, 506
(1973), the Supreme Court held that the
government must obtain a warrant before
seizing allegedly obscene material. The
case involved the seizure of a film by a
county sheriff who had viewed the film
and thought it violated the state's-anti-
obscenity law. The Court reasoned that
the material in question "fell arguably
within First Amendment protection" and
its seizure "is plainly a form of prior
restraint." Id. at 504. A "prior
restraint of the right of expression,
whether by books or films, calls for a
higher hurdle in the evaluation of
reasonableness." Id. The Court demanded
"the most scrupulous exactitude" in
applying the warrant requirement "when
the 'things' [to be seized] are books,
and the basis for their seizure is the
ideas which they contain." Id. (quoting
Stanford v. Texas, 379 U.S. 476, 486
(1965)).

Moore asks us to extend this rule to
require prior judicial approval of
arrests for possession of child
pornography. On one occasion, the Court
expressly refused to decide whether a
warrant is required to arrest a suspect
on obscenity charges, see Maryland v.
Macon, 472 U.S. 463, 467 (1985), and we
reject Moore's suggestion for two
reasons.

First, Roaden involved the warrantless
seizure of obscene material, not the
arrest of a person, and that distinction
changes the standard governing police
conduct. While arrest may serve in some
circumstances as a prior restraint, its
primary purpose is to bring a suspect
before a magistrate to answer a charge.
It implicates Fourth Amendment rights,
which the Court has balanced against the
interest in effective law enforcement by
requiring probable cause prior to the
arrest. See Illinois v. Gates, 462 U.S.
213, 237-39 (1983); Gerstein v. Pugh, 420
U.S. 103, 112 (1975) (describing probable
cause as a "practical, nontechnical
conception affording the best compromise"
between the interests of individual
liberty and effective law enforcement).
Probable cause, contrary to its name,
demands even less than "probability," see
United States v. Burrell, 963 F.2d 976,
986 (7th Cir. 1992), which is far less
than the "higher hurdle" and "most
scrupulous exactitude" required for a
seizure of First Amendment material.

Ideally, the judgment of probable cause
is made in a warrant proceeding before a
detached, neutral magistrate, but it also
can be made, and routinely is made, by
police officials. See Gerstein, 420 U.S.
at 112. In Gerstein, the Court noted
that although "the Court has expressed a
preference for the use of arrest warrants
when feasible . . . it has never
invalidated an arrest supported by
probable cause solely because the
officers failed to secure a warrant." Id.
at 113 (citations omitted). But see
Payton v. New York, 445 U.S. 573, 576
(1980) (prohibiting warrantless entries
into a suspect's dwelling to effect
felony arrest). Five years after Payton,
the Court decided Maryland v. Macon and
expressly left open the issue of whether
a warrant may be required before an
arrest on obscenity charges. 472 U.S. at
467. No authorities cited by either party
to this appeal, nor any found by this
Court have taken this additional step to
require arrest warrants in any instance
other than arrests in a suspect's home.
The protection of First and Fourth
Amendment values does not compel this
Court to take this step today.

The arrest of a suspect for possession
of contraband does not constitute a prior
restraint in the way the seizure of books
or films does. While at first glance it
may seem odd to require more judicial
protection for the liberty of one's books
than for one's body, the distinction
reflects this country's great concern
with the chilling effect on protected
speech brought on by a government
seizure. An ordinary arrest implicates an
individual's Fourth Amendment freedoms
and must meet the constitutional standard
of reasonableness. The seizure of an
individual's books implicates both First
and Fourth Amendment liberties, for which
the Supreme Court has required heightened
judicial protection to afford the right
to free expression the breathing room it
needs to survive. In some circumstances,
an arrest might implicate First Amendment
rights as well, but Moore's arrest did
not act as a prior restraint, and
therefore we need not reach that issue.

Given the facts of this case, we decline
to extend this level of heightened
protection to arrests that do not
constitute prior restraints. Officer
Tertipes arrested Moore based on probable
cause to believe he possessed child
pornography. In terms of the First
Amendment, Moore was not a speaker, and
his arrest cannot be considered a prior
restraint. Therefore, a warrantless
arrest could be effected if the situation
as known to Tertipes met the requirements
of probable cause.

The second reason we reject Moore's
argument that a warrant was required for
his arrest lies in the distinction
between arguably obscene material at
issue in Roaden, and child pornography.
Like obscenity, the Court has held that
child pornography is not protected
expression, and the states may regulate
it without offending the Constitution.
See New York v. Ferber, 458 U.S. 747, 764
(1982); see also United States v.
Andersson, 803 F.2d 903, 907 n.3 (7th
Cir. 1986). However, the concern with
chilling protected speech by regulating
arguably obscene material, which is
presumptively protected under Roaden, 413
U.S. at 504, is outweighed by the
compelling state interests in protecting
children in the case of child
pornography. See Ferber, 458 U.S. at 756-
59. Accordingly, the states are free to
regulate child pornography without the
strictures of the complex, community
standards test required for obscenity
under Miller v. California, 413 U.S. 15,
24-25 (1973). See Ferber, 458 U.S. 764-
65.

The application of child pornography
standards involves a more limited inquiry
than Miller requires, see Ferber, 458
U.S. at 764-65, and is within the
competency and experience of police
officers making a probable cause
determination. As such, we see no need to
extend Roaden to require pre-arrest
judicial oversight of whether particular
material constitutes child pornography.

B. Probable Cause

We now reach the issue of whether the
magazine in this case provided Officer
Tertipes with probable cause to arrest
Moore. We have held that probable cause
"exists if, at the moment the arrest was
made, the facts and circumstances within
the officers' knowledge . . . were
sufficient to warrant a prudent person in
believing that an offense has been
committed." Burrell, 963 F.2d at 986
(citation omitted). "Probable cause
requires more than bare suspicion but
need not be based on evidence sufficient
to support a conviction, nor even a
showing that the officer's belief is more
likely true than false." Id. (quoting
Brinegar v. United States, 338 U.S. 160,
175 (1949)). In addition, because the
situations that officers face "in the
course of executing their duties are more
or less ambiguous," probable cause allows
for reasonable mistakes by the officer.
Gerstein, 420 U.S. at 112.

To effect a lawful arrest, Tertipes
needed to have probable cause that Moore
possessed child pornography as defined by
Illinois law. Illinois law prohibits the
knowing possession of "any film,
videotape, photograph or other similar
visual reproduction . . . of any child .
. . engaged in any activity described in
subparagraphs (i) through (vii)." 720
Ill. Comp. Stat. 5/11-20.1(a)(6).
Subparagraph (vii) prohibits a child
"depicted or portrayed in any pose,
posture or setting involving a lewd
exhibition of the unclothed genitals,
pubic area, buttocks, or, if such person
is female, a fully or partially developed
breast of the child or other person." 720
Ill. Comp. Stat. 5/11-20.1(a)(1)(vii).

In determining whether a display is
"lewd," Illinois has applied the factors
discussed in United States v. Dost, 636
F.Supp. 828, 832 (S.D. Cal. 1986), aff'd
sub nom. United States v. Wiegand, 812
F.2d 1239 (9th Cir. 1987). See People v.
Lamborn, 708 N.E.2d 350, 354 (Ill. 1999).
The Dost test considers the following six
characteristics: (1) whether the focal
point is on the child's genitalia or
pubic area; (2) whether the setting is
sexually suggestive, i.e., in a place or
pose generally associated with sexual
activity; (3) whether the child is
depicted in an unnatural pose, or in
inappropriate attire, considering the age
of the child; (4) whether the child is
fully or partially clothed, or nude; (5)
whether the visual depiction suggests
sexual coyness or a willingness to engage
in sexual activity; and (6) whether the
visual depiction is intended or designed
to elicit a sexual response in the
viewer. See Dost, 636 F.Supp. at 832. The
visual depiction need not involve all
these factors to be considered lewd, and
the court must consider the overall
content of the depiction, taking into
account the age of the minor. See
Lamborn, 708 N.E.2d at 355; see also
United States v. Knox, 32 F.3d 733, 746
n.10 (3d Cir. 1994).

Officer Tertipes based his belief that
the magazine contained child pornography
on three photographs contained in the
magazine. Two photos in the magazine
Boyhood Australia showed young boys naked
in the wilderness. One photo showed a boy
who appeared to have stopped while
walking across a stream. His exposed
genitals were the focal point of the
photograph. The second photograph showed
a boy climbing a tree with his legs
separated and his buttocks near the
center of the photo. Both photos
reasonably could be considered to depict
the boys in unnatural poses designed to
elicit sexual responses from the viewer.
While neither appear to depict sexual
activity or sexuality, the poses of naked
children that emphasize their
exposedgenitalia and buttocks seem
designed to provoke a sexual response.

The third photograph advertised a
publication called The Age of Innocence.
It showed two naked girls embracing, one
standing behind the other with her arms
around the girl in front of her. Both
girls seemed to be reaching for the
other's pubic areas. The front girl's
breasts are the focal point of the
photograph, and a blurb accompanying the
photo describes the "adolescent girls" as
"yummy" and the photos as "mostly above-
the-waist (but ever-so-erotic)." The
position of the children suggests the two
girls are willing to engage in sexual
activity and seems designed to elicit a
sexual response in the viewer.

At the suppression hearing, Officer
Tertipes testified that he considered the
three photographs to be lewd, which he
defined in his own words as "something
that . . . would disturb someone . . .
maybe an inappropriate act, maybe the
normal person would view to be
unacceptable." His definition does not
track the statutory language, but an
officer's on-the-spot probable cause
determination does not require a precise
legalistic assessment of the publication
and application of the relevant case law.
Tertipes adequately identified three
photographs that gave him probable cause
to believe Moore possessed child
pornography within the meaning of
Illinois law. Tertipes followed up his
assessment of the magazine, which
included not just the photographs but the
narratives regarding sex with children,
by confirming Moore's connection to the
magazine and by interviewing Moore. Based
on all of this information, Tertipes had
probable cause to believe Moore had
knowingly committed the crime of
possession of child pornography.

III. Conclusion

We conclude that Officer Tertipes had
probable cause to believe Moore possessed
child pornography, justifying Moore's
arrest and subsequent voluntary
interrogation. Therefore, Moore's Fourth
Amendment right to be free from
unreasonable searches of his premises was
not violated when he voluntarily granted
the Moline police permission to search
his apartment and seize the illegal
material found there. The district
court's denial of the motion to suppress
is Affirmed.